sideration. Colegrove v. New York & N. H. R. Co., 20 N. Y. 492. That case had been mentioned with approval in Barrett v. Third Ave. R. Co., 45 N. Y. 628; Slater v. Mersereau, 64 N. Y. 138; Artic F. Ins. Co. v. Austin, 69 N. Y. 470 (25 Am. Rep. 221). See, also, Cooper v. Eastern Transp. Co., 75 N. Y. 116. The same view is taken in other courts. Wabash, St. L. & P. R. Co. v. Shacklet, 105 Ill. 364 (44 Am. Rep. 791); Union Transit Co. v. Shacklet, 119 Ill. 232, 10 N. E. 896; Carterville v. Cook, 129 Ill. 152, 22 N. E. 14 (4 L. R. A. 721); Cuddy v. Horn, 46 Mich. 596, 10 N. W. 32 (41 Am. Rep. 178).”
Cyc. (33 Cyc. 726, 727) says:
“Where an injury is sustained by reason of the joint or concurrent negligence of two railroad companies or a railroad company and another company or person, plaintiff may sue both jointly, and it is not necessary that there should be a breach of a joint duty, or any concerted action on the part of defendants, but it is sufficient if their several acts of negligence concur and unite in producing the injury complained of; nor is it material that one of defendants owed to plaintiff a higher degree of care than the other. So, in case of an injury growing out of a collision, where there was negligence on the part of both defendants, plaintiff may sue jointly, according to the nature of the collision, the two railroad companies, or a railroad company and street railroad company, or a railroad company and a hackman in whose vehicle plaintiff was a passenger. A person injured at a crossing may maintain a joint action against the company owning the road and another using it by its permission, where there was negligence on the part of the gateman of the one and those in charge of the train of the other, or the company owning the road was negligent in not maintaining a flagman at the crossing and the other company in the manner of operating its trains.”
The principle stated is applicable here. Under the facts as found by the jury in this case, the injury sustained by the plaintiff resulted from a collision caused by the negligent act of the engineer in the operation of the train, and by the negligent act of the assistant weighmaster of the coal company in placing the loaded cars on the tracks over which he knew the train would come. Neither act, standing alone, but both acts in conjunction, and operating concurrently, caused the injury which the plaintiff sustained.
Error is also predicated upon the court’s action in allowing the plaintiff to amend the complaint after the trial had commenced. The
